MOHANLAL BURABHAI Vs. ASHOK TYRES

JUDGEMENT

(1.) THE present Second Appeal has been filed posing the following substantial question of law while issuing notice of the court.

(2.) THE facts of the case, briefly summarized, are that Civil Suit No. 195/77 was filed by respondent No. 1-Ashok Tyres against the present appellant, who was original defendant No. 4 and respondent Nos. 2 to 4. THEre was a partnership firm in the name and style of Kanji Vashram & Co. which was defendant No. 1 in the said suit and defendant Nos. 2 to 4 were the partners. THE present appellant, original defendant No. 4, is said to have purchased the tyres and tubes worth Rs. 3,950/- for the truck bearing No. GTE 7809 and as the amount was not paid, notice was issued and subsequently the suit was filed for recovery of the amount which came to be allowed by the trial court vide the judgment and order dated 28.2.1979. THE suit was decreed against all the defendants. Regular Civil Appeal No. 23/79 came to be filed by respondent No. 3, original defendant No. 2, challenging the impugned judgment and order. THE lower appellate court has partly allowed the appeal and modified the judgment and decree against respondent Nos. 1 to 3 and confirmed the judgment and decree qua original defendant No. 4, the appellant herein, vide its judgment and order dated 23.1.1981. It is this judgment and order which is challenged by way of the present Second Appeal posing the aforesaid substantial question of law.

(3.) ANOTHER aspect of the submission that the appeal was filed against the judgment of the trial court decreeing the suit against all the defendants by only defendant No. 2 and the present appellant has not even preferred the appeal and therefore the lower appellate court has exceeded the jurisdiction in modifying the decree qua some of the defendants, except defendant No. 4, is also misconceived inasmuch as the decree of the trial court was against all the defendants. However, it has been modified and the appeal has been allowed partly to that extent and therefore there is no jurisdictional error as sought to be canvassed . In any case, considering the smallness of the amount also, it does not require any further elaboration. Further, the scope of exercise of discretion under sec. 100 of the Code of Civil Procedure is also very limited.